Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 10F01298
HULL, Acting P. J.Defendant Juan Garcia entered a negotiated no contest plea to felony failure to register as a sex offender (Pen. Code, § 290.018, subd. (b); unspecified statutory references that follow are to the Penal Code) and he received probation. In this appeal, defendant challenges a number of his probation conditions as invalid under California law and unconstitutionally overbroad. For the most part, we disagree and, with one minor modification, we affirm the order of probation.
Facts and Proceedings
In 1990, defendant was convicted in Los Angeles County of misdemeanor child molestation or annoyance. (§ 647.6, subd. (a)(1).)
The word “molests” in section 647.6 is, in general, a synonym for “annoy[s].” (People v. Maurer (1995) 32 Cal.App.4th 1121, 1126, fn. 1.) A person may be convicted of violating section 647.6 if he (1) engages in acts or conduct, directed at a child under the age of 18, which would unhesitatingly disturb or irritate a normal person, if directed at such person, and (2) such acts or conduct were motivated by an unnatural or abnormal sexual interest in the child. (See People v. Maurer, supra, 32 Cal.App.4th at p. 1125.) It is not necessary that the acts or conduct actually disturb or irritate the child, or that the body of the child be actually touched. (Ibid.)
Neither the details of defendant’s section 647.6 offense, nor the age and sex of the victim, appear in the record.
In 2004, defendant was convicted in Placer County of failure to register as a sex offender. (§ 290.)
In 2010 defendant entered a negotiated no contest plea to felony failure to register within five days of moving into Sacramento County in violation of section 290.018, subdivision (b), and was placed on three years’ formal probation.
Over defendant’s objections, the trial court imposed the following probation conditions, which he now challenges on appeal:
“Defendant is not to knowingly be in the presence of any minor or groups of minors under the age of 18 without an adult being present who has been approved by the probation officer. Do not knowingly communicate, either in writing or electronically with any minor under the age of 18 without prior approval by the probation officer.” (The probation report, this is condition No. 3.)
“The defendant shall seek and obtain professional counseling through and under the direction of the Probation Officer.” (In the probation report, this is condition No. 4.)
“Defendant shall disclose all email accounts, all internet accounts and any other means of access to any computer or computer network, all passwords and access codes. Defendant shall consent to the search of such email and internet accounts at any time and for the seizure of any information without a search warrant or probable cause.” (In the probation report, this is condition No. 6.)
“Defendant shall not possess any software and/or hardware designed for the purpose of encrypting or decrypting computer files.” (In the probation report, this is condition No. 7.)
Defendant shall “[s]ubmit to continuous electronic monitoring, Global Positioning System monitoring or other device as directed by [his] probation officer.” (In the probation report, this is condition No. 11.)
Defendant shall “not knowingly engage in volunteer work involving minors without the permission of the probation officer or Court.” (In the probation report, this is condition No. 12.)
Discussion
Defendant contends the trial court abused its discretion in imposing each of the disputed probation conditions because they are unrelated to his current offense of failing to register as a sex offender, or are otherwise unconstitutionally overbroad and unreasonable. With one exception, as to which we conclude a condition should be modified, we are not persuaded.
Probation Conditions and the Standard of Review
Penal Code section 1203.1, subdivision (j) gives a trial court the authority to impose reasonable conditions of probation “as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer[.]”
In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Our review of a trial court’s decision to impose specific probation conditions is deferential; a condition will not be invalidated unless it satisfies each of the following criteria: (1) it has no relationship to the crime of which the offender was convicted; (2) it relates to conduct, which is not itself criminal; and (3) it requires or forbids conduct, which is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent); People v. Carbajal, supra, 10 Cal.4th at p. 1121.) A trial court abuses its discretion only when the probation conditions imposed are arbitrary, capricious, or exceed the bounds of reason. (People v. Welch (1993) 5 Cal.4th 228, 233-234.)
Judicial discretion to set conditions of probation is further circumscribed by constitutional considerations (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058), although probation conditions may place limits on constitutional rights if reasonably necessary to meet the goals of probation. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941.) “Where an otherwise valid condition of probation impinges on constitutional rights, such conditions must be carefully tailored, ‘“reasonably related to the compelling state interest in reformation and rehabilitation....”’ [Citations.]” (Id. at p. 942; see also In re Sheena K. (2007) 40 Cal.4th 875, 890 [condition of probation affecting the exercise of constitutional rights must be “closely tailor[ed]” to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad]; People v. Garcia (1993) 19 Cal.App.4th 97, 101-102 [such conditions must be “narrowly drawn”].)
Finally, “‘[p]robation is not a right, but a privilege.’” (In re York (1995) 9 Cal.4th 1133, 1150, quoting People v. Bravo (1987) 43 Cal.3d 600, 608.) “‘[I]f the defendant feels that the terms of probation are harsher than the sentence for the substantive offense[, ] he is free to refuse probation.’” (People v. Rubics (2006) 136 Cal.App.4th 452, 459, quoting People v. Miller (1967) 256 Cal.App.2d 348, 356.)
Section 290
Section 290 requires persons who have been convicted of certain sex crimes to register with local law enforcement agencies according to specified time frames and conditions. Among other things, an offender who changes his address must reregister within five working days of moving to the new address. (§ 290, subd. (f)(1).) As our Supreme Court has said repeatedly, “‘The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]’” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527 (Wright), quoting Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825-826.) The registration requirement of section 290 protects public safety “[b]y providing for the collection of information about the identity and whereabouts of convicted sex offenders, [and making] it harder for such persons to reoffend without getting caught.” (In re Alva (2004) 33 Cal.4th 254, 288.)
A person required to register who willfully violates any requirement of the statute, and who has a prior conviction for failing to register, is guilty of a felony and is subject to a state prison sentence of 16 months, two years, or three years. (§ 290.018, subd. (b).)
With this background in mind, we examine defendant’s contentions as to each disputed probation condition.
Disputed Conditions
A. Condition Nos. 3 and 12, which restrict defendant’s presence around, and communication with, minors.
Citing Lent, defendant contends these conditions must be invalidated since they bear no relationship to his failure to register conviction and, further, they constitute an unconstitutionally overbroad infringement of his First Amendment rights of association.
We first reject defendant’s claim that these probation conditions are unrelated to his current crime of failing to register as a sex offender, and thereby satisfy the first prong of the Lent test justifying invalidation. This argument ignores the purpose of the registration statute and its relationship to his original crime. Defendant was convicted of acting on “an unnatural or abnormal sexual interest” in a child. (§ 647.6, subd. (a)(2); see People v. Maurer, supra, 32 Cal.App.4th at p. 1125.) The Legislature has already determined that the risk of reoffense by persons who have been so convicted is high. As the court explained in Wright, the People of the State of California through their Legislature have deemed convicted sex offenders a category of persons who are likely to “‘commit similar offenses in the future.’” (Wright, supra, 15 Cal.4th at p. 527.) These offenders “pose a ‘continuing threat to society’” and society must keep track of them through police surveillance. (Ibid.) These challenged conditions allowing defendant to spend time in the company of children only if chaperoned by an approved adult (condition No. 3), to get permission before writing or electronically communicating with them (condition No. 3), and to seek permission before engaging in volunteer activities (condition No. 12), are designed to protect particularly vulnerable young people from exposure to the possibility that they might fall victim to a reoffense by defendant. The disputed conditions thus forbid conduct which is reasonably related both to his current crime and to the possibility of future criminal conduct and as such, do not constitute an abuse of discretion. They are neither arbitrary nor capricious; nor do they exceed the bounds of reason. (People v. Welch, supra, 5 Cal.4th at pp. 233-234.)
Defendant also argues these probation conditions are overly broad and unnecessarily impinge on his First Amendment right of association. “The right to associate... ‘may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.’ [Citations.] Such restrictions are ‘“part of the nature of the criminal process. [Citation.]”’ [Citation.] A limitation on the right to associate which takes the form of a probation condition is permissible if it is ‘(1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends.’ [Citations.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 627-628.) In People v. Delvalle (1994) 26 Cal.App.4th 869, 878, the reviewing court upheld a probation condition that the defendant, who was convicted of attempting to buy a four-year-old child, “‘stay away from any places where minor children congregate.’” In People v. Mills (1978) 81 Cal.App.3d 171, 181-182, the defendant had physically restrained a seven-year-old girl, molested her, and attempted to have intercourse; the reviewing court approved a probation condition that defendant not associate with girls under 18 years of age except in the company of responsible adults. Because probation conditions foster rehabilitation and protect the public safety, they may infringe upon the constitutional rights of the defendant, who is “not entitled to the same degree of constitutional protection as other citizens.” (People v. Peck (1996) 52 Cal.App.4th 351, 362.) Consequently, restrictions on a probationer’s right of association are permissible if reasonably required to accomplish the needs of the state. (People v. Lopez, supra, 66 Cal.App.4th at pp. 627-628.) A properly drawn condition prohibiting association with minors, as condition Nos. 3 and 12 do in this case, will not be found unreasonable.
Defendant raises three specific overbreadth challenges to these conditions. First, he contends the phrase that prohibits his being “in the presence of” a minor in condition No. 3 could cause him to unintentionally violate his probation by going to work, church, the movies, or the grocery store.
We agree with the People that a broad restriction on defendant’s access to children lessens the odds he will commit the same or similar offenses during his probationary period. However, we also find merit in defendant’s claim that condition No. 3 is unconstitutionally overbroad because it severely restricts his ability to function in public places: prohibiting him from being “in the presence of... [any person] under the age of 18” restricts accidental or benign contact with persons such as grocery clerks, sales personnel, and others. (Cf. In re Kacy S. (1998) 68 Cal.App.4th 704, 712-713.) Not only are many perfectly legal activities unrelated to future criminality covered by this probation condition, but the requirements of daily living necessarily give defendant less ability to avoid being in simple physical proximity to minors for brief periods of time. We believe an appropriate balance of the competing interests requires a modification of the challenged condition to clarify that defendant not associate with minors except in the company of responsible adults approved by the probation officer. Association connotes a purposeful, rather than accidental, contact, and it is this contact that may be properly restricted unless defendant is accompanied by an approved adult.
Defendant also argues condition Nos. 3 and 12 are unconstitutionally overbroad because they each confer unfettered discretion on the probation officer regarding which adults may be present when defendant is with minors, and in what situations defendant may communicate and/or volunteer with minors. True, a probation condition that effectively delegates unfettered discretion to a probation officer to determine its scope risks being found unconstitutionally overbroad. For example, in People v. O'Neil (2008) 165 Cal.App.4th 1351, the appellate court struck down as overbroad a condition that forbade the defendant from associating with all persons designated by his probation officer. (Id. at pp. 1354, 1358.) It reasoned that, while a trial court “may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation, ” a probation condition could not be “entirely open-ended” because the trial court was responsible for determining “the nature of the prohibition placed on a defendant as a condition of probation, and the class of people with whom the defendant is directed to have no association.” (Id. at pp. 1358–1359.) Although probation officers may be given “‘wide discretion to enforce court-ordered conditions’ (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373 []), they may not create conditions not expressly authorized by the court (id. at pp. 1372–1373.)” (People v. O'Neil, supra, 165 Cal.App.4th at pp. 1358-1359 [condition was impermissibly overbroad because it “contain[ed] no such standard by which the probation department is to be guided”].)
Here, however, the challenged probation conditions do not invite probation officers to create conditions not authorized by the court. Rather, they are intended to ensure that the adults chaperoning defendant with children are themselves responsible persons. In that capacity, defendant’s probation officers must exercise a certain amount of discretion and we assume that they will not unreasonably delay or withhold their approval when defendant identifies an adult he wishes to have approved as a chaperone, or identifies a situation in which he wishes to volunteer or communicate with minors. (Cf. In re Hudson, (2006) 143 Cal.App.4th 1, 11.)
Finally, defendant argues both condition Nos. 3 and 12 are overbroad because they prohibit unapproved contact with all minors (including his grandchildren) notwithstanding a lack of evidence in the record that he is a threat to “younger children and/or minor males.” He suggests that neither minor males nor younger children of either gender were victims of his 1990 molestation conviction and thus are unrelated to the offense, the potential for future criminality, or the interests of the state in public protection.
Defendant may be correct that limiting his ability to associate with postadolescent females would reasonably accomplish the needs of the state in limiting his access to the age and sex cohort involved in his sexual misconduct. But as no facts concerning his 1990 conviction appear in the record on appeal, we also see no impropriety in the trial court’s having extended unsupervised or unapproved minor associations to include minors of both sexes and all ages.
We shall order condition No. 3 to be modified as follows: “Defendant shall not associate with any minor under the age of 18 without an adult being present who has been approved by the probation officer. Do not knowingly communicate, either in writing or electronically with any minor under the age of 18 without prior approval by the probation officer.” Condition No. 12 shall remain unchanged.
B. Condition No. 4, which requires defendant to seek and obtain “professional counseling.”
Defendant argues the trial court abused its discretion in ordering him to seek counseling, because: (1) a violation of section 290 does not require counseling as a condition of probation; (2) he already completed a program of counseling at the time of his section 647.6 offense (§ 647.6, subd. (d)(1)); and (3) the “only evidence” in the record indicates “he is a low-risk offender.” The nature of the mandatory counseling is not specified in the probation condition, but the parties’ assumption the court was referring to sex offender counseling is a reasonable one.
The requirement that defendant complete a sex offender counseling program is directly related to his crime of failure to register as a sex offender. As we have explained, section 290 was intended to assure that sex offenders are readily available for police surveillance at all times and for the rest of their lives, because the Legislature has deemed them likely to commit similar offenses in the future. (Wright, supra, 15 Cal.4th at p. 527.) As the Legislature stated in amending the statute in 1996: “Sex offenders pose a high risk of engaging in further offenses after release from incarceration or commitment, and protection of the public from these offenders is a paramount public interest.” (Stats. 1996, ch. 908, § 1.)
The court did not abuse its discretion in ordering defendant to undergo sex offender counseling. Because the purpose of section 290 is to prevent and detect recidivism by adjudicated sex offenders, a probation condition requiring sex offender counseling is clearly related to the crime of failure to register as a sex offender. Such a condition furthers the statutory purposes of section 290 by promoting rehabilitation of sex offenders and protecting the public against recidivist sex offenders. Its imposition was reasonable.
C. Condition Nos. 6 and 7, which require defendant to disclose his internet and email accounts and passwords, consent to warrantless searches of those accounts, and prohibit his owning software or hardware that encrypts his computer information.
Defendant complains these probation conditions must be stricken because his molestation offense did not involve a computer and thus they are unconstitutionally overbroad. We disagree.
Many cases have upheld probation conditions restricting a defendant’s use of computers and/or the internet, even when the offense is not directly computer related. (See, e.g., In re Hudson, supra, 143 Cal.App.4th at pp. 10-11; In re Victor L. (2010) 182 Cal.App.4th 902, 923-927; U.S. v. Perazza-Mercado (1st Cir. 2009) 553 F.3d 65, 73 [“Although the internet did not play a role in the sexual misconduct which was the basis for his conviction, we must also consider [the defendant’s] documented propensity for inappropriate behavior towards young girls. The personal characteristics of the defendant, even though they do not reflect any history of computer misuse, could justify a targeted limitation on internet use involving certain kinds of chat rooms or any sites involving children, especially in light of research suggesting that convicted sex offenders are likely to reoffend.”]; but see In re Stevens (2004) 119 Cal.App.4th 1228, 1231, 1239 [complete prohibition on computer use and the Internet “bore no relation to [defendant’s] conviction for child molestation and imposed a greater restriction of his rights than was reasonably necessary to accomplish the state’s legitimate goal”].) In view of these cases, defendant faces a heavy burden of persuasion to show a probation condition like the one in this case--which neither limits nor prohibits his access to a computer or the internet--is unconstitutionally overbroad because his 1990 offense did not involve computer use.
He has not met that burden. Condition No. 6 merely requires that defendant disclose his computer email accounts and identification information and submit to a warrantless search of those accounts. Probation authorities are “legitimately concerned that a released child molester’s unfettered access to a computer might result in criminal conduct.” (See In re Stevens, supra, 119 Cal.App.4th at p. 1239.) The trial court did not abuse its discretion in concluding that requiring defendant to provide access to his computer accounts was reasonably necessary to accomplish the statute’s legitimate goals. (See In re Hudson, supra, 143 Cal.App.4th at p. 11.)
Nor has defendant shown that condition No. 7, which prohibits him from possessing hardware or software designed to encrypt or decrypt computer files, is unconstitutionally overbroad. The danger of file encryption is noted by one appeals court, which held that a paroled child molester who, while earlier on probation had encrypted his computer so that its use could not be monitored by probation authorities, could be subjected to a condition of parole which prohibited access to the Internet except with prior permission from his parole officer. (In re Hudson, supra, 143 Cal.App.4th at p. 11.) Here, in contrast, defendant need not obtain the probation officer’s permission to access the Internet, but he is not allowed to use encryption to hide information on the computer. Defendant has not shown this is an unreasonable balance of his rights and the need to protect public safety.
D. Condition No. 11, requiring defendant to submit to continuous electronic monitoring.
Defendant asserts that the condition requiring him to submit to electronic monitoring is overbroad because it infringes on his constitutional rights “and is not reasonably related to [his] offense or history, deterrence, or protection of the public.” He contends that because the statutes require a “particularized assessment” and only “high-risk persons on probation who are likely to reoffend” may be required to submit to electronic monitoring, the court abused its discretion when it imposed the condition without considering that he is, in fact, a low-risk offender.
As we noted above, this court cannot consider any argument that relies on defendant’s history or characterization of his 1990 offense, because the record on appeal contains no information on these points. He is mistaken, moreover, in arguing that electronic monitoring cannot be imposed absent an individualized assessment of high risk of reoffense. Although electronic monitoring was expressly authorized by statute in 2009 for registered sex offenders who have been assessed using the State Authorized Risk Assessment Tool for Sex Offenders and found to have a risk level of high (§§ 1202.8, 1203f), such a designation is not a prerequisite for the imposition of such monitoring. Having found that “continuous electronic monitoring has proven to be an effective risk management tool for supervising high-risk persons on probation who are likely to reoffend where prevention and knowledge of their whereabouts is a high priority for maintaining public safety” (§ 1210.7, subd. (e)), the Legislature has authorized electronic monitoring for any adult probationer (§ 1210.7 et seq.; In re R.V. (2009) 171 Cal.App.4th 239, 247) and delegated to each county chief probation officer “sole discretion, consistent with the terms and conditions of probation, to decide which persons shall be supervised using continuous electronic monitoring” equipment consistent with its written guidelines. (§§ 1210.12, subd. (a), 1210.7).
As we discussed, the Legislature has already determined that persons convicted of certain sex crimes--including molestation--are deemed likely to commit similar offenses in the future (See Wright, supra, 15 Cal.4th at p. 527; § 290, subd. (c)) and that registration is required to protect public safety by “providing for the collection of information about the identity and whereabouts of convicted sex offenders, [and making] it harder for such persons to reoffend without getting caught.” (In re Alva, supra, 33 Cal.4th 254, 288.)
The trial court did not abuse its discretion in impliedly concluding that such persons are therefore “high-risk persons on probation who are likely to reoffend where prevention and knowledge of their whereabouts is a high priority for maintaining public safety” (§ 1210.7, subd. (e)) as to whom local probation authorities have discretion to supervise by electronic monitoring. The trial court could also properly conclude that maintaining knowledge of such an offender’s whereabouts is particularly imperative where, as here, an offender has twice failed to comply with the registration requirements of section 290.
Disposition
The probation condition prohibiting defendant from being in the presence of any minor is ordered to be modified as follows: “Defendant shall not associate with any minor under the age of 18 without an adult being present who has been approved by the probation officer. Do not knowingly communicate, either in writing or electronically with any minor under the age of 18 without prior approval by the probation officer.” As modified, the order of probation is affirmed. Upon remand, the court shall correct its records, and shall send a certified corrected copy of the order of probation to the probation authorities.
We concur: ROBIE, J. BUTZ, J.